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Knox v. Bragg

United States District Court, D. South Carolina, Florence Division

October 11, 2018

CEDERICK E. KNOX, Petitioner,
v.
TRAVIS BRAGG, WARDEN, FCI-BENNETTSVILLE, Respondent.

          REPORT AND RECOMMENDATION

          Thomas E. Rogers, III United States Magistrate Judge.

         The Petitioner, Cederick E. Knox, (“Petitioner/Knox”), appearing pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241[1] on April 10, 2018. On August 28, 2018, the Respondent filed a motion to dismiss along with a return containing supporting memorandum. (ECF No. 21). The undersigned issued an order filed August 28, 2018, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), advising the Petitioner of the motion and the possible consequences if he failed to respond adequately. (ECF No. 22). Petitioner failed to file a response.

         RULE 41(B) DISMISSAL

         A complaint may be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute and/or failure to comply with orders of the court. Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, 493 U.S. 1084 (1990), and Chandler Leasing Corp. v. Lopez, 669 F.2d 919 (4th Cir. 1982). In considering whether to dismiss an action pursuant to Rule 41(b), the court is required to consider four factors:

(1) the degree of plaintiff's responsibility in failing to respond;
(2) the amount of prejudice to the defendant;
(3) the history of the plaintiff in proceeding in a dilatory manner; and,
(4) the existence of less drastic sanctions other than dismissal.

Davis v. Williams, 588 F.2d 69 (4th Cir. 1978).

         In the present case, the Petitioner is proceeding pro se so he is entirely responsible for his actions. It is solely through Petitioner's neglect, and not that of an attorney, that no responses have been filed. Petitioner has not responded to Respondent's Motion to Dismiss or the court's orders requiring him to respond. No. other reasonable sanctions are available. Accordingly, it is recommended that this action be dismissed pursuant to Fed. R. Civ. Proc. 41(b).

         In the alternative, the Motion to Dismiss will be addressed on the merits below.

         PROCEDURAL AND FACTUAL BACKGROUND

         Knox is currently incarcerated at the Federal Correctional Institution Bennettsville in South Carolina. Knox is seeking relief pursuant to 28 U.S.C. § 2241.

         Knox did not file a response to the Motion to Dismiss. Therefore, the undisputed procedural and factual background set forth by the Respondent will be repeated verbatim, herein.

         Charges and Plea Agreement

         Knox was indicted in the Middle District of North Carolina on December 18, 2006, and charged in Count One with conspiracy to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) and in Count Two with violating 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) by possessing 254.5 grams of crack cocaine with intent to distribute. United States v. Knox, No. 1:06-CR-00471- CCE (M.D. N.C. ) (“M.D. N.C. case”). On December 27, 2006, the government filed an information of prior convictions under 21 U.S.C. §§ 850, 851(a)(1) citing ...


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